Judging the Public Interest: The rule of law vs. the rule of courts

The judiciary is guilty of overreaching its constitutional remit by overruling Ministers’ decisions whether to release material not deemed to be in the public interest.

In Judging the Public Interest, Prof Richard Ekins (University of Oxford) and Prof Christopher Forsyth (University of Cambridge) argue that the Freedom of Information Act (FOIA) needs to be urgently amended to ensure that government ministers retain their right to veto disclosure of information, as Parliament intended.

The report shows that some senior members of the judiciary are overstepping their constitutional bounds. It examines the high profile dispute in Evans v Attorney General, concerning the disclosure of the Prince of Wales’s correspondence with ministers. The then Attorney General, Dominic Grieve QC, exercised his statutory power – the ministerial veto – to override the Upper Tribunal and block the release of the letters. His exercise of the veto was challenged in the courts and eventually quashed by the Supreme Court.

Ekins and Forsyth argue that this was a clear example of the judiciary overstepping the mark. They argue that section 53 of the FOI Act clearly authorises a Cabinet Minister to override a decision of the Information Commissioner or Tribunal ordering disclosure.

The paper uses the case to illustrate the two main ways in which some judges undercut the decisions of the executive and Parliament:

The misinterpretation of legislation, in which courts impose on a statute an artificial reading that departs from Parliament’s intention, misunderstanding the statute or even effectively rewriting it.

Excessive judicial review, in which the courts override the executive’s decision about how best to exercise the powers that Parliament choses to vest in it.

The paper makes it clear that the type of judicial overreach seen in the ‘spider letter’ case is not grounded in the Human Rights Act 1998 and would not be rolled back by that Act’s repeal. It sets out a new bill to restore Parliament’s choice to enact the ministerial veto, a bill which would reinforce both the rule of law and Parliament’s continuing authority to legislate.

Professor Richard Ekins, co-author of the report, said:

“The Supreme Court’s decision to overrule the Attorney General’s decision about release of the Prince of Wales’s personal letters is a clear and very troubling case of judicial overreach. Suppressing the minister’s statutory power and undercutting the scheme Parliament enacted is contrary to the rule of law.

“This wayward judgment should be answered. Parliament urgently needs to enact legislation to restore the legal rule that was enacted fifteen years ago. If the Freedom of Information Act is not amended in this way, the ministerial right to block disclosure remains vulnerable to legal challenge. For the law to be changed in this way – by judicial fiat rather than by democratic decision – is an affront to parliamentary democracy.”

Commenting on the paper, Lord Hoffman of Chedworth, a former Law Lord, said:

“The courts are rightly jealous to protect the rights of the individual against the power of the majority, but questions of the general public interest such as the functioning of the monarchy are surely a matter for democratic decision.”